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Mealey's Daubert

March 16, 2020
Expert’s ‘Legal Conclusions’ In Contract Row Not Allowed, Judge Rules

GULFPORT, Miss. — An expert’s opinions on fiduciary obligations under a construction indemnity agreement for work at a college baseball stadium in Mississippi are conclusions of law and therefore inadmissible, a federal judge held March 11 in granting a motion to strike the expert’s testimony (American Contractors Indemnity Company v. Reflectech, Inc., et al. v. Century Construction & Realty, Inc., No. 1:18-cv-297, S.D. Miss., 2020 U.S. Dist. LEXIS 43068).
March 11, 2020
New Hampshire High Court Remands; Expert Opinion Question Answered Narrowly

CONCORD, N.H. — The Supreme Court of New Hampshire on March 6 remanded a lead paint poisoning case to a trial court, determining that for an expert opinion on causation in a toxic tort case to be admissible, the expert is not required to base his or her opinion on the dose-response relationship (Sandra Moscicki v. Charles Leno, et al.; Charles Leno, et al. v. Sandra Moscicki, No. 2019-009, N.H. Sup., 2020 N.H. LEXIS 38).
March 10, 2020
New Jersey Appeals Panel Agrees That Woman’s Expert Unable To Link Defects, Mold

TRENTON, N.J.— A New Jersey appeals court panel on March 6 affirmed the dismissal of a woman’s lawsuit accusing U.S. Home Corp., doing business as Lennar, of construction defects that resulted in water intrusion and mold growth, finding that her expert’s testimony was unable to establish proximate causation (Joann Wean v. U.S. Home Corp., et al., No. A-5521-17T3, N.J. Super., App. Div.).
March 10, 2020
Damages Opinions Allowed In Suit Against Electric Company Over Forest Fire

MOSCOW, Idaho — A wildfire expert for a power company can opine on the amount of money damages sustained by the United States from a fire that burned more than 43,000 acres of government-owned forest in Idaho, even though the expert lacks a financial or accounting background, a federal magistrate judge held March 6 (United States v. Idaho County Light and Power Cooperative Association, Inc., No. 3:17-cv-00391, D. Idaho, 2020 U.S. Dist. LEXIS 39717).
March 10, 2020
Kaiser Gypsum Debtors, Asbestos Reps Seek To Exclude Expert Testimony

CHARLOTTE, N.C. — An expert for insurers should not be allowed to testify at the confirmation hearing for Kaiser Gypsum Co. Inc. debtors’ plan of reorganization because the insurers don’t have standing to assert objections to the plan and the expert’s opinions are irrelevant, the debtors argue in a Feb. 27 motion in limine in North Carolina federal bankruptcy court (In re Kaiser Gypsum Company, Inc., et al., No. 16-31602, W.D. N.C. Bkcy.).
March 10, 2020
Bayer General Counsel, Others: Rule Of Evidence On Expert Testimony Should Change

WASHINGTON, D.C. — The general counsel for Bayer US LLC, the parent company of Monsanto Co., which estimates that it faces litigation from at least 42,700 plaintiffs related to glyphosate, the active ingredient in the herbicide Roundup, joined corporate officers from other companies in signing a letter sent to the Office of the U.S. Courts, urging it to amend the federal rules of evidence regarding the admissibility of expert testimony.
March 05, 2020
Loss Of Expert Dooms Suit Against Six Flags Over Water Slide Injury

GREENBELT, Md. — A couple from Morocco on March 4 lost their personal injury case against Six Flags America LP over a water slide mishap in which the husband broke his leg, after losing their causation expert to a motion in limine in Maryland federal court for lack of reliability (Hicham Elkharroubi, et al. v. Six Flags America, LP, et al., No. 17-2169, D. Md., 2020 U.S. Dist. LEXIS 37431).
March 04, 2020
Split 8th Circuit Panel Affirms Expert’s Exclusion In Suit Over Fall On Ice

ST. LOUIS — A divided Eighth Circuit U.S. Court of Appeals panel on March 3 affirmed summary judgment for a parking lot operator in a slip-and-fall case. While the majority and the dissent both agreed that the opinions of a plaintiffs’ expert on the formation of black ice “birdbaths” in pavement were properly excluded, they disagreed on whether the exclusion warranted summary judgment (Tonia Ackerman, et al. v. U-Park Inc., No. 19-1814, 8th Cir., 2020 U.S. App. LEXIS 6625).
March 02, 2020
Asbestos Expert’s Exclusion From Talc Case Proper, Pennsylvania Court Affirms

PHILADELPHIA — A trial court properly excluded expert testimony that merely parroted a second expert’s conclusion that talc contained asbestos, properly excluded causation testimony based on that opinion, and then granted summary judgment to the defendant, a Pennsylvania appeals court held Feb. 21 (Charles Brandt, et al. v. The Bon-Ton Stores Inc., et al., No. 940 EDA 2019, Pa. Super., 2020 Pa. Super. Unpub. LEXIS 641).
March 02, 2020
Plaintiff’s Expert Allowed To Opine On Cause Of Home Fire In Coverage Suit

MACON, Ga. — A certified fire investigator can testify as an expert for a mobile-home owner about the lack of evidence of arson at his home after it was destroyed in a 2016 blaze, a Georgia federal judge ruled Feb. 26 in an insurance coverage dispute (David T. Dobbs, et al. v. Allstate Indemnity Company, No. 5:18-cv-00309, M.D. Ga., 2020 U.S. Dist. LEXIS 32518).
March 02, 2020
‘Multiple Chemical Sensitivity’ Opinions Properly Stricken, 6th Circuit Panel Says

CINCINNATI — The Sixth Circuit U.S. Court of Appeals on Feb. 24 agreed with a trial court that three medical experts’ opinions that road paving can cause a woman to suffer from an unrecognized condition called “multiple chemical sensitivity” are not admissible because they are unreliable (Cynthia Madej, et al. v. Jeff Maiden, No. 18-4132, 6th Cir., 2020 U.S. App. LEXIS 5492).
February 25, 2020
Expert Dose Reconstruction Opinion Admitted In Federal Asbestos Case

SEATTLE — An industrial hygienist appears to have sufficiently supported his asbestos dose reconstruction opinion, and any challenge to his methodology can come during cross-examination, a federal judge in Washington held Feb. 13 (William R. Clayton, et al. v. Air & Liquid Systems Corp., et al., No. 18-748, W.D. Wash., 2019 U.S. Dist. LEXIS 192150).
February 24, 2020
Panel Affirms, Reverses Indemnity Rulings In Oil Well Blowout Dispute

NEW ORLEANS — In a dispute arising out of an oil well blowout, the Fifth Circuit U.S. Court of Appeals on Feb. 21 affirmed in part and reversed in part a lower court’s entry of summary judgment on contractual indemnity and liability issues involving a rig’s charterer and its subrogated insurers’ product liability claims against a refurbisher of the rig’s blowout-prevention components (Certain Underwriters at Lloyd’s, London, et al. v. Axon Pressure Products Inc., et al., No. 18-20453, 5th Cir., 2020 U.S. App. LEXIS 5373).
February 21, 2020
Suit Over Facelift Continues After Expert Approved, Summary Judgment Denied

CHARLESTON, S.C. — An expert for a woman suing a plastic surgeon for allegedly botching her facelift is sufficiently qualified and offers reliable opinions, a South Carolina federal judge ruled Feb. 20 in refusing to exclude the expert and denying the surgeon’s bid for summary judgment (Shaan Schaeffer v. Heidi D. Williams, MD, LLC, No. No. 2:18-cv-1532, D. S.C., 2020 U.S. Dist. LEXIS 29131).
February 20, 2020
Crop Insurance Agent’s Admission Makes Expert’s ‘Powerball’ Opinion Irrelevant

OMAHA, Neb. — An expert’s opinion that the likelihood of 96 clients randomly leaving one insurance agency for another “was approximately equal to winning the Powerball Lottery 32 consecutive times” was calculated reliably enough but is not relevant in a breach of nonsolicitation agreement dispute because the defendant sales agent admits that the customers’ switch was not random, a Nebraska federal judge ruled Feb. 18 (Farm Credit Services of America, FLCA v. Nicole Tifft, et al., No. 8:18-cv-80, D. Neb., 2020 U.S. Dist. LEXIS 27544).
February 19, 2020
Loss Of Expert Sinks Insurer’s Defect Claims Over Dryer Fire, Judge Rules

ROCHESTER, N.Y. — A clothes dryer manufacturer won summary judgment on Feb. 18 in New York federal court on an insurer’s claims that a defective dryer started a house fire, after the insurer lost its causation expert to a successful Daubert challenge (Amica Mutual Insurance Company v. Electrolux Home Products, Inc., No. 6:16-cv-6845, W.D. N.Y., 2020 U.S. Dist. LEXIS 27135).
February 14, 2020
Restaurant Wins Judgment In Trip-Fall Case After Expert’s Opinions Found Lacking

BOSTON — A federal judge on Feb. 13 awarded a Massachusetts restaurant summary judgment in a trip-and-fall case involving a revolving door after finding that an expert for the plaintiff provided no admissible evidence that the door malfunctioned (Marjorie Joan Donahoe v. Maggiano’s Holding Corporation, No. 1:18-cv-10230, D. Mass., 2020 U.S. Dist. LEXIS 25153).
February 13, 2020
Former Judge’s Qualifications, Testimony As Expert Pass Muster, Court Rules

CHICAGO — A former judge’s proposed testimony about the standard of care for “any reasonably competent Illinois lawyer” when handling a suit over a bank loan meets the requirements for admissibility, as long as he doesn’t say that the defendant law firm breached the standard of care, a federal judge ruled Feb. 10 in a legal malpractice case (Webster Bank, N.A. v. Pierce & Associates, P.C., No. 16-cv-2522, N.D. Ill., 2020 U.S. Dist. LEXIS 22764).
February 12, 2020
Defense Lawyers Agree Cert Needed On Whether Officers Give Expert Opinions

WASHINGTON, D.C. — A criminal defense attorneys’ group on Feb. 7 backed a convicted cocaine smuggler’s attempt to have the U.S. Supreme Court decide whether law enforcement officers offering lay opinions based on their experience should testify instead as experts under Federal Rule of Evidence 702, filing an amicus curiae brief in his support (Lenin Lugo v. United States, No. 19-855, U.S. Sup.).
February 11, 2020
Judge Denies Motions To Exclude Experts’ Opinions In Cleanup Suit

DAYTON, Ohio— A federal judge in Ohio on Feb. 10 denied motions to exclude the proffered expert testimony of an allocation expert and a waste stream specialist brought by defendant companies in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) lawsuit, finding that challenges regarding the reliability of the experts’ opinions are better suited for trial (Hobart Corporation, et al. v. The Dayton Power & Light Co., et al., No. 13-cv-115, S.D. Ohio, 2020 U.S. Dist. LEXIS 22813).